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54 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF HUD LOCALS 222

(Union)

and

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Agency)

0-AR-2725

_____

DECISION

September 30 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.⁽¹⁾

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff filed by the Union (AFGE) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the Agency did not commit an unfair labor practice, or violate the parties' agreement, by allowing the National Federation of Federal Employees (NFFE) to participate in its national-level reorganization task forces. Accordingly, the Arbitrator denied the grievance.

For the reasons set forth below, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

AFGE is the exclusive representative of a nationwide unit of Agency employees. AFGE also has national consultation rights with the Agency under section 7113 of the Statute.⁽²⁾ AFGE entered into a partnership agreement with the Agency in November 1993.

NFFE is the exclusive representative of units of Agency employees in three regions of the Agency. NFFE and the Agency entered into a partnership agreement in April 1994.

Prior to these agreements, in early 1993, the Agency had implemented a reinvention process for the Agency. This process involved solicitation of the views of employees on ways to improve the performance of the Agency. Both AFGE and NFFE participated in this process. Award at 4. In August 1993, as a direct result of this reinvention process, the Agency announced a reorganization of its field operations.

In early November, 1993, AFGE objected to NFFE's involvement in national level activities such as the reinvention process. Id. at 8. When NFFE representatives participated in planning for the Agency's December 1, 1993, program announcing the proposed reorganization to all Agency employees, and in the program itself, AFGE filed an unfair labor practice charge alleging a violation of its rights as an exclusive representative under section 7116(a)(1), (3), (5), and (8) of the Statute. Id. at 8-9. According to the Agency, NFFE's participation in these activities was based on the Agency head's policy to include both unions in the Agency's reinvention and reorganization efforts. Id. at 9.⁽³⁾

As a part of the December 1 program, the Agency announced that, in order to plan the reorganization, it was establishing three levels of task forces or committees. Specifically, the first level, program area task forces, which were to be established by each Assistant Secretary whose program contained field operations. Id. at 9. Pursuant to the Agency head's policy to include both AFGE and NFFE representatives on the task forces, the program area task forces, as established by the Agency, included one NFFE representative. The NFFE representative was added because the reorganization plans developed by the task forces would affect employees in the units represented by NFFE. Id. at 9, 11, 12.

On January 13, 1994, AFGE and the Agency executed a Memorandum of Understanding (MOU) governing AFGE's participation in the reorganization planning process. Id. at 10. NFFE and the Agency did not enter into any agreement governing NFFE's participation in the planning process.

Under the MOU: (1) AFGE would have two representatives on the task forces; (2) AFGE and Agency representatives would be equal partners on those task forces; (3) the task forces would operate by consensus; (4) issues not resolved by consensus would be reserved for bargaining; (5) AFGE would be provided the same information as other members of the task forces; (6) the AFGE Executive Board would have the opportunity to approve program task force consensus decisions prior to their submission to the Assistant Secretaries; and (7) if changes were requested by the Assistant Secretaries, the AFGE Executive Board would have the opportunity to approve those changes prior to their final submission to the overview committee.

The Agency also established the second level, field reorganization task force (FRTF), to consider issues and recommendations from the program area task forces.⁽⁴⁾ Id. at 11-12. As established, the FRTF included both AFGE and NFFE representatives.⁽⁵⁾ At some point, which is unclear from the record, the third level, a Deputy Secretary overview committee, was established.

In February 1994, AFGE filed a grievance challenging NFFE's participation on the task forces. The grievance was not resolved and was submitted to the Arbitrator. In March 1994, after the grievance was filed, but before the arbitration hearing, the Agency scheduled a meeting at the Richmond field office to present the proposed reorganization in the Housing program field structure. The Richmond office is a part of the AFGE unit. Both an AFGE and a NFFE representative attended the meeting. Management representatives from the Housing task force presented the reorganization plan and the local AFGE president addressed the meeting. The NFFE representative took no part in presenting the plan.

Before the Arbitrator, AFGE alleged that inclusion of NFFE representatives on the task forces violated section 7116(a)(1), (3), (5), and (8) of the Statute and Articles 1 and 5 of the parties' collective bargaining agreement.⁽⁶⁾ AFGE claimed that NFFE participation on the task forces was in derogation of its national exclusive representation rights. In response, the Agency argued that NFFE representatives participated on the task forces only to represent the interests of employees in the units it represents. According to the Agency, the fact that NFFE did not have national level recognition was "inconsequential." Award at 14. The Arbitrator framed the issue as follows:

Whether the Agency's action in permitting representatives of [NFFE] to participate on the Agency's national level reorganization task forces violated the Federal Labor[-]Management Relations Statute, Sections 7116(a)(1), (3), (5), and (8), and Articles 1 and 5, of the Parties' Agreement, and, if so, what is the appropriate remedy?

Id. at 3.

As relevant here, the Arbitrator rejected the Agency's claim that NFFE has national consultation rights under section 7113 of the Statute. According to the Arbitrator, under section 2426.1(a)(1) and (b)(1) of the Authority's Regulations, a request for national consultation rights is a condition precedent to the grant of such rights. The Arbitrator found that there was "no probative evidence that NFFE ever requested such national consultation rights." Id. at 18. Further, he found that there was "no evidence that any such rights were granted or established at any relevant time." Id. ⁽⁷⁾

The Arbitrator also concluded that AFGE "failed to meet its burden of demonstrating that the Agency's actions with respect to the inclusion of NFFE representatives on the reorganization task forces violated [AFGE's] recognitional or exclusive national level bargaining rights under the Agreement or under the Statute."⁽⁸⁾ Id. at 19. Specifically, the Arbitrator found that there was "no assertion or evidence that the Agency has taken any actions which directly constitute a refusal to bargain with [AFGE] at the national level or at the appropriate local levels about any matter concerning the reinvention/reorganization efforts of the [Agency]." Id. The Arbitrator also found that there was no "evidence that the Agency, in fact, has bargained directly with NFFE concerning any matter which appropriately should be negotiated with [AFGE] either at the national level only or at the local level for Regional Field Offices represented by AFGE." Id. at 19-20 (emphasis in original).

The Arbitrator found that, under the MOU, AFGE and the Agency had agreed that "the process . . . by which the various task forces are to conduct their affairs was intended to be by consensus through discussion, rather than by formal bargaining." Id. at 20 (emphasis in original). In this connection, he found that the task forces, which included representatives of AFGE, NFFE, and the Agency, had in fact operated by consensus. Consensus was achieved when all parties reached agreement on an issue. Specifically, the Arbitrator found that "[t]here is no dispute that, in fact, the [p]arties, including representatives of AFGE and of NFFE, as well as management officials, have proceeded in their respective task force deliberations on the basis of attempting to achieve 'consensus' by discussing problems and issues until general agreement is reached." Id. at 20. He also found that, under the MOU, AFGE's "Executive Board has the right to disapprove of any 'consensus agreement' by any of the task forces and that [AFGE] has the right to require formal bargaining concerning any matter otherwise appropriate for such negotiations." Id. In this regard, under the MOU, if AFGE did not agree to any matter about which NFFE and the Agency had reached agreement, AFGE was free to preserve that matter for bargaining. The Arbitrator concluded that NFFE's participation on the task forces did not preclude AFGE from bargaining with the Agency on any matter considered by those task forces.

The Arbitrator also found that there was no evidence that the Agency "dealt inappropriately with the NFFE representatives on any of the task forces on any subject related to the reorganization of the Agency." Id. at 21. The Arbitrator considered an inappropriate subject to be one that "does not impact employees in NFFE-represented [f]ield [o]ffices[.]" Id. The Arbitrator found that AFGE had presented no evidence that the Agency discussed with NFFE representatives subjects that affected only employees in AFGE-represented field offices and not in NFFE-represented field offices. The Arbitrator concluded that AFGE's argument amounted to a claim that the Agency should have discussed the issues addressed by the task forces with AFGE and NFFE separately, a process that would have been "duplicative" and "inefficient." Id.

The Arbitrator rejected AFGE's claim that the presence of NFFE representatives on the task forces allowed NFFE to "'veto'" any consensus that might otherwise have been reached by AFGE and the Agency. Id. The Arbitrator found that there was no evidence that NFFE had, in fact, vetoed a consensus reached by AFGE and the Agency on any issue. The Arbitrator also found that AFGE "and the Agency, without interference by NFFE, could negotiate formally a resolution of such [an] issue in national bargaining which was entirely consistent with their proposed consensus at the task force level which had been 'vetoed' by NFFE." Id.

Finally, the Arbitrator rejected AFGE's claim that, by allowing a NFFE representative to attend the meeting at the Richmond Field Office, the Agency "unfairly demonstrated favoritism toward NFFE over the AFGE in a manner which interfered with AFGE's recognitional or representational rights." Id. at 22. The Arbitrator noted that: (1) there was only one bargaining unit employee, the AFGE local president, present when the NFFE representative was asked to explain the nature and purposes of NFFE; (2) the AFGE local president was not part of a "captive audience"; and (3) the AFGE local president was not refused an opportunity to respond to anything she felt was objectionable in the NFFE representative's statement. Consequently, the Arbitrator concluded that there was no evidence that the Agency's actions at the meeting constituted: (1) "favoritism" toward NFFE; (2) an "improper attempt" to "demean AFGE in front of bargaining unit employees"; or (3) "an attempt to deprive AFGE of its legitimate representational and recognitional interests." Id.

For the foregoing reasons, the Arbitrator denied AFGE's grievance.

III. The Award Is Not Contrary to Section 7116(a)(1) and (5) of the Statute.

A. Positions of the Parties

1. Union

AFGE states that "[t]here is no meaningful dispute between the parties and the Arbitrator on the pivotal facts in this case." Exceptions at 10. Specifically, AFGE acknowledges that the Agency "set up national task forces to deal with various Agency structural issues." Id.

According to AFGE, the Agency violated section 7116(a)(1) and (5) of the Statute by interfering with its right, under section 7114(a)(1), to act as exclusive representative for employees in its unit. AFGE acknowledges that, "by discussing policies that are national in scope," the reorganization task forces are "simultaneously" addressing issues that are pertinent to its unit and the "smaller NFFE bargaining unit[s]." Id. at 11. AFGE claims, however, that through those discussions the Agency "deal[t] with NFFE on what the conditions of employment should be for employees in the bargaining unit for which [AFGE] acts as the exclusive representative." Id. AFGE maintains that by dealing directly with NFFE concerning conditions of employment in the AFGE unit, the Agency violated section 7116(a)(1) and (5).

AFGE notes that in the usual bypass case an agency deals directly with employees. AFGE asserts that the only difference between this case and the usual bypass case is that in this case the Agency dealt directly with another union. AFGE contends that, in this regard, the Agency's conduct in this case is "indistinguishable" from "an unlawful bypass." Id. at 14. AFGE also argues that the Agency's action constitutes an independent violation of section 7116(a)(1) because it "demeans" AFGE. Id. at 12.

Further, according to AFGE, the obligation of the Agency to deal only with AFGE is not limited solely to bargaining, but includes partnership relations as well. Consequently, AFGE claims that the Arbitrator's award is contrary to law because his conclusion that the Agency did not violate the Statute was based on findings that the Agency's obligation "did not extend to all dealings on bargaining unit conditions of employment" and that the parties were not involved in bargaining. Id. at 13 (emphasis in original). In this regard, AFGE contends that the Arbitrator improperly concluded that the Agency's conduct is permitted under Executive Order 12871 (the Executive Order). According to AFGE, the Executive Order cannot "override the rights of [AFGE] as exclusive representative under the Statute." Id. at 15.

Finally, citing Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council, 16 FLRA 80 (1984) (INS), AFGE maintains that the award improperly sanctions a "multi-unit bargaining arrangement" concerning conditions of employment in its unit. Exceptions at 15. In this connection, AFGE states that the Arbitrator's finding that separate reorganization task force procedures for [AFGE] and NFFE would have been "'inefficient and wasteful'" misses the point. Id.

2. Agency

The Agency claims that the Arbitrator properly found that it did not violate section 7116(a)(1) and (5) of the Statute when it included NFFE representatives on the task forces. According to the Agency, the Arbitrator correctly found that there was no evidence that the Agency improperly dealt with NFFE representatives on matters that pertained only to the bargaining unit represented by the AFGE. The Agency also contends that the Arbitrator correctly found that AFGE did not waive its right to bargain over any matter as to which the parties were unable to achieve consensus through the task force process.

The Agency argues that AFGE has not established that it has a legal right to participate in task forces that do not include NFFE. According to the Agency, the Executive Order does not give AFGE such a right. The Agency also contends that the fact that NFFE does not have national consultation rights does not prohibit the Agency from including NFFE representatives on the task forces.

B. Analysis and Conclusions

Because AFGE's exceptions challenge the award's consistency with law, the Authority reviews the questions of law raised by those exceptions and the Arbitrator's award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).⁽⁹⁾ Our review of the award in this case examines whether the Arbitrator correctly concluded, based on his factual findings, that the Agency did not commit the unfair labor practices (ULP) alleged. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703 (1998).

When a grievance under section 7121 of the Statute involves an alleged unfair labor practice, arbitrators must apply the same standards and burdens that would be applied by an administrative law judge in a ULP proceeding under section 7118. In a grievance alleging a ULP by an agency, the union bears the burden of proving the elements of the alleged ULP by a preponderance of the evidence. See American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429, 1438-39 (1997) (Veterans Affairs, Philadelphia). However, as in other arbitration cases, including those where violations of law are alleged, the Authority defers to an arbitrator's findings of fact. See, e.g., U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996).⁽¹⁰⁾

The exceptions require us to determine whether the Arbitrator erred in concluding that the Agency did not violate the Statute by permitting NFFE representatives to participate in the task forces. In resolving the exceptions, we defer to the Arbitrator's findings of fact. It is well established, in this regard, that it is the arbitrator's -- not the Authority's -- evaluation of the record for which the parties have bargained. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution West, 52 FLRA 94, 97 (1996). Cf. United Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987) (Court stated that, "[b]ecause the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts . . . that they have agreed to accept."). Accordingly, we not only defer to the Arbitrator's findings of fact, we also do not supplement those findings by engaging in our own factfinding.

As discussed in more detail below, the facts as found by the Arbitrator demonstrate that the Agency established task forces and that both AFGE and NFFE accepted the Agency's invitation to participate in the task forces. These facts also demonstrate that NFFE's participation in the task forces had absolutely no effect on AFGE's right to bargain on behalf of, or otherwise represent, employees in the bargaining unit for which it is entitled to act exclusively. Further, nothing in the Arbitrator's findings provides a basis on which to speculate that AFGE's rights would have been affected if it had chosen, instead, not to participate on the task forces.

In these circumstances, we are compelled to conclude that the Arbitrator's award is not deficient as inconsistent with section 7116(a)(1) and (5) of the Statute. In so doing, we do not establish a per se rule. We also do not expand the situations in which agencies are permitted to deal directly with individuals or institutions other than the exclusive representative. We are simply doing what is required under section 7122 of the Statute: applying the law as we understand it to the facts found by the Arbitrator to resolve the exceptions now before us.

1. Principles Applied In Determining Direct Dealings In Violation of Section 7116(a)(1) and (5) of the Statute

(a) Authority Precedent

Under section 7114(a)(1) of the Statute, once a union is certified as the exclusive representative of an appropriate unit of agency employees, the agency must "deal only with" that representative concerning any matter affecting the conditions of employment of employees in that unit. See American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491, 499-500 (1995) (OPM), petition for review denied sub nom. American Federation of Government Employees, Local 32 v. FLRA, 110 F.3d 810 (D.C. Cir. 1997). An agency fails to comply with this obligation when it deals directly with someone other than the exclusive representative concerning matters that are within the scope of the exclusive representative's authority as to unit employees' conditions of employment. Specifically, an agency fails to comply with its obligation to deal only with an exclusive representative by dealing directly either with another union⁽¹¹⁾ or with unit employees⁽¹²⁾ on matters that are within the sole authority of that exclusive representative.

This case involves an allegation that the Agency violated section 7116(a)(1) and (5) of the Statute by dealing directly with NFFE over matters that are within the scope of the AFGE's authority as an exclusive representative. The Authority has not previously considered a case where it is alleged that an agency bypassed the exclusive representative in violation of section 7116(a)(1) and (5) by directly dealing with a union other than the exclusive representative.⁽¹³⁾ The Authority has, however, considered cases in which an agency is alleged to have violated section 7116(a)(1) and (5) by dealing directly with unit employees. Although we recognize, as does our dissenting colleague, that the two situations are factually distinct, we agree with AFGE that it is useful to examine this precedent.⁽¹⁴⁾ In this regard, although such cases involve dealings with unit employees, not other unions, in both situations the core issue is the same: whether the agency has met its obligation to the exclusive representative. As there is no claim that the cases on which we rely for the principles applied here were wrongly decided, Authority precedent concerning an agency's dealings with unit employees is relevant for identifying the principles to be applied in resolving whether an agency's dealings with a union other than the exclusive representative direct dealings in violation of the Statute.

Under Authority precedent, an agency violates section 7116(a)(1) and (5) of the Statute when it deals directly with employees in a unit of exclusive recognition concerning their conditions of employment such that the agency's conduct interferes with the exclusive representative's rights under section 7114(a) to act for and represent all employees in the bargaining unit. Id. Such conduct "inherently undermines the status of the [exclusive representative] and constitutes a violation of the Statute." Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA 1226, 1239 (1991) (Lowry Air Force Base).

Although the Authority has not defined the phrase "direct dealings," it has identified specific activities that violate the Statute. For example, an agency deals directly with employees in violation of the Statute when it communicates with an employee concerning that employee's grievance. FCI, Bastrop, 51 FLRA at 1346-47. An agency also deals directly with unit employees in violation of the Statute when, without contacting the exclusive representative, it solicits employee assistance in establishing a condition of employment and adopts an alternative suggested by employees. See Lowry Air Force Base, 42 FLRA at 1239 (management approval and implementation of employee proposal concerning work schedule constitutes direct dealing which undermined the status of the union); Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA 100, 104 (1984) (agency solicited employee suggestions of alternatives for development of new watch schedule and adopted one of the alternatives despite union objections). Where an agency threatens and promises benefits to employees, indirectly urging employees to put pressure on the exclusive representative to change its position, the agency deals directly with employees in violation of the Statute. Iowa National Guard and National Guard Bureau, 8 FLRA 500, 513 (1982).

However, not all contacts between an agency and employees constitute direct dealings that violate the Statute. Where an agency's contacts with employees on matters affecting conditions of employment do not exclude the exclusive representative, and the agency recognizes its obligation to bargain only with the exclusive representative, the agency is not involved in direct dealing in violation of the Statute. See Internal Revenue Service (District, Region, National Office Units), 19 FLRA 353 (1985) (IRS), affirmed NTEU v. FLRA, 826 F.2d 114 (D.C. Cir. 1987) (no direct dealing in violation of the Statute where agency notified union of employee questionnaire, provided union with copies, agreed to provide union with information derived from questionnaires, and acknowledged obligation to bargain with the union over any changes it made based on information in questionnaires). In addition, the Authority has found that an agency's dealings with employees in a situation where the union has no statutory rights do not constitute direct dealing in violation of the Statute. See U.S. Government Printing Office, 23 FLRA 35, 40 (1986) (agency did not violate Statute by dealing directly with employee concerning her EEO complaint because "the exclusive representative had no statutory rights or obligation to represent her in that process").

In sum, not all contacts between an agency and unit employees constitute direct dealings that violate the Statute. As applied in this decision, however, the phrase "direct dealings" is used to refer to agency conduct that undermines the exclusive representative and thereby violates the Statute.

(b) Precedent Under the National Labor Relations Act

It is well established that, as is the case here, "[w]hen there are comparable provisions under the Statute and the NLRA, decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute." U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico, 53 FLRA 1006, 1015 (1997) (Caribbean District Office), quoting U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1381 (1990).

The comparable provision under the National Labor Relations Act (Act) to section 7116(a)(1) and (5) of the Statute is section 8(a)(1) and (5).⁽¹⁵⁾ The type of activities identified by the Authority as constituting direct dealing with employees in violation of section 7116(a))(1) and (5) are also held by the National Labor Relations Board (Board) to constitute direct dealing with employees that violates section 8(a)(1) and (5) of the Act. See, e.g., Central Management Co., 314 NLRB 763, 767 (1994); Allied-Signal, Inc., 307 NLRB 752, 753-54 (1992) (Allied-Signal); Facet Enterprises, Inc., 290 NLRB 152, 153 (1988). See also Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-86 (1944). "Direct dealing need not take the form of actual bargaining." Allied Signal, 307 NLRB at 753. According to the Board, the test for determining direct dealing between an employer and unit employees in violation of the Act involves an inquiry into whether the employer's dealings are "likely to erode 'the [u]nion's position as exclusive representative'." Allied-Signal, 307 NLRB at 753, citing Modern Merchandising, 284 NLRB 1377, 1379 (1987). Where an employer deals with employees concerning matters that are not within the union's exclusive authority, however, it does not commit an unfair labor practice. See E. I. Du Pont & Co., 311 NLRB 893, 897 (1993).

(c) Summary of Principles

Taking into account both Authority and Board precedent, we summarize as follows the principles we will apply for determining whether an agency's conduct constitutes direct dealing with a union other than the exclusive representative that is in violation of the Statute. In determining whether an agency's contacts with a union other than the exclusive representative amount to such direct dealing, we will examine whether the agency's actions undermine the rights of the exclusive representative. Where an agency's contacts with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute. In addition, where an agency's contacts with a union other than the exclusive representative do not involve matters within the scope of the statutory authority of the exclusive representative, the agency also is not engaged in direct dealing contrary to the Statute.

We turn, then, to the application of these principles to the Arbitrator's findings with respect to the Agency's dealings with NFFE in this case.

2. Application of the Principles

The Arbitrator found that the Agency's decision to include NFFE in the Agency-wide reorganization task forces did not deprive AFGE of any of its rights as an exclusive representative under the Statute. According to the Arbitrator, AFGE reserved the right to bargain, consistent with law, over those matters about which the task forces did not reach consensus.⁽¹⁶⁾ The Arbitrator found that the inclusion of NFFE on the task forces did not interfere with AFGE's authority as an exclusive representative to determine the conditions of employment for its unit.

Based on the Arbitrator's factual findings regarding the inclusion of AFGE and NFFE on the task forces, to which we defer, we find that AFGE retained the right to bargain with the Agency over any matters with respect to which the task forces did not reach consensus. Applying the principles outlined above, we further find that the presence of NFFE on those task forces did not undermine AFGE's statutory rights as the exclusive representative of its unit. Any conditions of employment pertaining to the reorganization that would apply to the AFGE unit would apply only because AFGE was part of the consensus reached in the reorganization task forces or because it had separately bargained them with the Agency after consensus within the task force was not reached. In this respect, we do not view the Arbitrator as having drawn a bright line between consensus decision-making and bargaining. His decision is not based on that distinction, but on his findings as to the nature and scope of the matters discussed in the task forces. However, to the extent that the Arbitrator drew such a line, we, like the dissent, firmly reject this. Consensus decision-making is not distinct from bargaining; rather, it is one manner in which bargaining may be conducted. See U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 319 (1997). In our view, however, it does not follow that a process that uses consensus becomes, ipso facto, collective bargaining.

AFGE was a full participant in the task force process,and lost none of its rights as exclusive representative as a result of NFFE's participation in the process. If AFGE disagreed with the Agency's decision to invite NFFE, as well as AFGE, to participate in the task forces,⁽¹⁷⁾ it was free to withdraw from the task forces and bargain with the Agency over the implementation of the reorganization in the units that it represents, through bilateral negotiations conducted through whatever ground rules are agreed upon.

In this regard, the instant case is distinguishable from U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, 53 FLRA 1269 (1998) (FDA), motion for stay denied, April 29, 1998, relied on in the dissent. In that case, the agency violated the Statute by insisting that the union surrender its right to bargain for its unit of exclusive representation as a whole. Here, the Agency did not insist that AFGE do anything. AFGE's and NFFE's participation on the task forces in this case was a voluntary arrangement and, as such, we disagree with our colleague that NFFE's participation ran afoul of the principle of exclusivity.⁽¹⁸⁾

Accordingly, we conclude that the Arbitrator properly found that AFGE has not met its burden of demonstrating that the Agency undermined AFGE's statutory rights as exclusive representative by dealing directly with NFFE on matters within the scope of AFGE's authority in violation of section 7116(a)(5) and (1) of the Statute.⁽¹⁹⁾

3. The Agency's Action Does Not Constitute an Independent Violation of Section 7116(a)(1) of the Statute

AFGE argues that the Agency's direct dealings with NFFE on the reorganization task forces demean AFGE and constitute an independent violation of section 7116(a)(1). Under Authority precedent, by dealing directly with unit employees, an agency "demeans" the union and "inherently interferes with the rights of employees to designate and rely on the union for representation," thereby independently violating section 7116(a)(1) of the Statute. FCI, Bastrop, 51 FLRA at 1346, quoting Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 311 (1991) (SSA, Region X). See also 438th Air Base Group (MAC), McGuire Air Force Base, New Jersey, 28 FLRA 1112 (1987); Social Security Administration, 16 FLRA 434 (1984). As described above, we have found no direct dealing between the Agency and NFFE in violation of the Statute in the circumstances of this case. AFGE does not argue any other basis for finding an independent violation of section 7116(a)(1). Consequently, applying the test set forth in FCI, Bathrop and SSA, Region X, we conclude that the Agency's dealings with NFFE on the reorganization task forces do not constitute an independent violation of section 7116(a)(1). Consequently, we deny this exception.⁽²⁰⁾

4. The Arbitrator Did Not Give Precedence to Executive Order 12871 Over AFGE's Statutory Rights

The Arbitrator found that the Agency did not violate section 7116(a)(1) and (5) of the Statute because he found that the Agency had not improperly dealt with NFFE on matters that were within the scope of AFGE's authority as exclusive representative of its unit. His finding that there was no violation did not rest on the fact that the Agency and NFFE were engaged in partnership activities under the Executive Order. Therefore, AFGE's argument is inapposite and does not demonstrate that the award is deficient.

5. The Agency's Action Did Not Create Multi-Unit Bargaining Without AFGE's Consent and Did Not Violate Section 7116(a)(5) of the Statute

We reject AFGE's claim, based on INS, that the Arbitrator's award improperly allows the Agency to create multi-unit bargaining without AFGE's consent. In properly finding that the Agency had not violated section 7116(a)(5), the Arbitrator found that, pursuant to the MOU, AFGE had retained its rights under the Statute. Award at 20-21. The AFGE Executive Board could veto any consensus agreement reached by any of the task forces. See note 14, supra. Moreover, AFGE retained the right to bargain over any matters about which the task forces did not reach consensus. Consequently, AFGE was not bound by any matters with respect to which the Agency and NFFE, but not AFGE, reached agreement. Cf. INS, 16 FLRA at 85-87 (absent timely withdrawal, party to multi-unit bargaining is bound by results of that bargaining). AFGE's argument that the award bound it to the results of the task forces contrary to its rights under the Statute fails to demonstrate that the award is deficient.

For the foregoing reasons, we find that the Arbitrator's conclusion that the Agency did not violate section 7116(a)(1) and (5) is not deficient. Accordingly, we deny this exception.

IV. The Award Is Not Contrary to Sections 7113 and 7116(a)(8) of the Statute.

A. Positions of the Parties

1. Union

AFGE claims that the award is contrary to section 7113 and section 7116(a)(8) because it allows NFFE to continue to exercise national consultation rights within the meaning of section 7113 despite the fact that the Arbitrator found that NFFE had no such rights. According to AFGE, the Arbitrator found that NFFE did not qualify for national consultation rights and that, given that finding, he erred by failing to order the Agency to discontinue providing NFFE with such rights.

2. Agency

The Agency claims that the Arbitrator properly found that the Agency did not violate section 7113 and section 7116(a)(8) of the Statute. According to the Agency, the Arbitrator did not find "that NFFE's participation on the limited purpose field reorganization task forces is the same as, or the functional equivalent of[,] section 7113 national consultation rights." Opposition at 7.

B. Analysis and Conclusions

There is no exception to the Arbitrator's finding that NFFE does not possess national consultation rights. According to AFGE, given that finding, the Arbitrator erred by failing to order the Agency to discontinue affording NFFE national consultation rights under section 7113. We construe AFGE's exception as contending that the Agency's dealings with NFFE on the task forces constituted "consultation" pursuant to section 7113 of the Statute.

Even assuming that consultation between the Agency and NFFE took place, AFGE has not argued that the Agency was precluded by section 7113 from such consultation. In this regard, we note that section 7113 on its face imposes specific obligations on agencies with respect to unions that meet the criteria for national consultation rights under the Authority's Regulations. Section 7113 does not, however, preclude agencies at the national level from choosing to discuss with unions representing its employees possible agency-wide changes in conditions of employment.⁽²¹⁾ Consequently, AFGE has provided no basis for concluding that the Agency violated section 7113 and section 7116(a)(8) of the Statute, and the Arbitrator did not err by failing to find such violations in this case.

Accordingly, we deny AFGE's exception.

V. The Award Is Not Contrary to Section 7116(a)(3) of the Statute.

A. Positions of the Parties

1. Union

AFGE claims that the award is deficient because the Arbitrator failed to find that the Agency violated section 7116(a)(3) of the Statute. AFGE states that, under section 7116(a)(3), it is an unfair labor practice for an agency to provide routine services and facilities to a union other than the exclusive representative, unless that union has equivalent status. According to AFGE, NFFE does not have equivalent status. AFGE argues that the Agency therefore violated section 7116(a)(3) by: (1) providing NFFE, in connection with its participation on the reorganization task forces, with office space, a desk, a computer, and travel and per diem; (2) including a NFFE representative in the group which visited a field office in AFGE's bargaining unit; and (3) providing national consultation rights to NFFE in violation of section 7113. AFGE claims that these actions amounted to "sponsorship of NFFE" by the Agency. Exceptions at 20.

2. Agency

According to the Agency, it provided the services and facilities in question to NFFE in order to implement the Executive Order. The Agency asserts that provision of those services and facilities was for the limited purpose of the task forces. The Agency claims that the Executive Order is a lawful order and that the provision of those services and facilities to NFFE is a "reasonable implementation" of the Executive Order. Opposition at 8.

B. Analysis and Conclusions

In Social Security Administration, 52 FLRA 1159 (1997) (Social Security), affirmed in relevant part and reversed in part National Treasury Employees Union v. FLRA, Case No. 97-1204 (D.C. Cir. March 27, 1998), the Authority established the framework it will follow in analyzing whether agency actions constitute a violation of section 7116(a)(3) of the Statute. Under that framework, the "central question" is "whether the agency action . . . sponsored, controlled, or assisted" a union. Id. at 1174. In answering that question, the Authority examines "whether, in the totality of circumstances, the employer interfered with employee freedom of choice by failing to maintain a proper arms-length relationship with the labor organization involved." Id. at 1176. Equivalent status is only a "factor to be considered" in the analysis under section 7116(a)(3). Id. at 1174-75 n.12.

AFGE claims that because NFFE does not have equivalent status with AFGE, the Agency's actions with respect to NFFE constituted a violation of section 7116(a)(3).⁽²²⁾ Under the framework set forth in Social Security, however, equivalent status is only one factor among many that the Authority will consider. It is not a dispositive factor. The lack of equivalent status for NFFE is thus not sufficient to establish a violation of section 7116(a)(3). As the Arbitrator found, the Agency's inclusion of NFFE in the reorganization task forces did not deprive AFGE of its rights as an exclusive representative. The Agency's actions implementing NFFE's participation in the task forces therefore did not deprive AFGE unit employees of full representation by the labor organization of their choice. Social Security, 52 FLRA at 1175-78. Consequently, AFGE provided no basis for concluding that the Agency impermissibly sponsored NFFE within the meaning of section 7116(a)(3) of the Statute.

Finally, we find that the Arbitrator's findings with respect to the Richmond meeting, set forth in Section II., supra, support his conclusion that the Agency's actions did not violate section 7116(a)(3). In particular, the Arbitrator found, and AFGE does not dispute, that only the AFGE president was present when the NFFE representative spoke and that the AFGE president was not prevented from responding. AFGE has presented no evidence that, in these limited circumstances, the inclusion of the NFFE representative in the Richmond meeting interfered with the free choice of employees in the Richmond AFGE unit with respect to a bargaining representative.

Accordingly, we deny AFGE's exception.

VI. The Award Is Not Based on a Nonfact.

A. Positions of the Parties

1. Union

AFGE claims that, given the testimony and exhibits that it introduced at the hearing, the Arbitrator's conclusion that the Agency had not violated the Statute is based on nonfacts. According to AFGE, the Arbitrator erred in finding that AFGE had not pointed to any matters concerning which the Agency had dealt with NFFE in the task forces that should have been confined to local bargaining with that union. AFGE asserts that the Arbitrator's finding was contradicted by evidence introduced by AFGE. Specifically, AFGE points to an Agency document that states that NFFE had agreed to the plan for the reorganization of one of the Agency's subdivisions. AFGE also points to testimony concerning NFFE's "extensive involvement" in the development of the national placement plan. Exceptions at 22. AFGE claims that these and other matters concern "national scope items that should only have been addressed by NFFE in the context of their local bargaining rights." Id.

2. Agency

The Agency claims that AFGE's exception constitutes disagreement with the Arbitrator's findings of fact.

B. Analysis and Conclusions

To demonstrate that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at the arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

AFGE claims that the Arbitrator erroneously found that the Agency had not dealt with NFFE on matters that should have been confined to local bargaining with AFGE. However, it is clear that the parties disputed this matter before the Arbitrator. Consequently, AFGE's claim provides no basis for finding the award deficient as based on nonfacts. See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 222, 233 (1997). Accordingly, we deny AFGE's exception.

VII. The Award Is Not Contrary to Public Policy.

A. Positions of the Parties

1. Union

AFGE claims that the Executive Order establishes a new public policy concerning labor-management partnerships. According to AFGE, the Arbitrator misinterpreted the Executive Order by holding that partnership agreements thereunder "constitute the forfeiture of representational rights" granted by the Statute. Exceptions at 23.

2. Agency

The Agency claims that AFGE excepts to the Arbitrator's award on the ground that "the Arbitrator improperly relied on the Executive Order in concluding that the Agency has not violated [AFGE's] exclusive representational rights." Opposition at 9. According to the Agency, AFGE's exception amounts to a complaint that the Executive Order is an "improper public policy" because, through the use of partnership under the Executive Order, AFGE has been denied "its 'own' set of reorganization task forces" without NFFE representatives.

The Agency claims that, under the test set forth in Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765 (1988) (SSA, Local 1923), AFGE has not demonstrated that the Agency violated a "public policy."

B. Analysis and Conclusions

We construe AFGE's exception as a claim that the award violates public policy as stated in the Executive Order because it requires the forfeiture of AFGE's representational rights. AFGE's public policy arguments constitute a restatement of its claim that the Arbitrator's award violates its rights as exclusive representative under the Statute. We have found that the award does not violate those rights. Consequently, AFGE's public policy exception is unavailing.

Accordingly, we deny that exception.

VIII. Decision

The Union's exceptions are denied.

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APPENDIX

1. Article 1 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 1

COVERAGE AND RECOGNITION

Section 1.01 - Recognition

(1) The Union is recognized as the sole and exclusive representative for all bargaining unit employees as defined in the following sections of this Article.

(2) As the sole and exclusive representative, the Union is entitled to act for and to negotiate agreements covering all employees in the bargaining unit. The Union is responsible for representing all employees in the bargaining unit without discrimination and without regard to Union membership.

(3) Management agrees that in regard to the bargaining unit, it will not enter into other agreements, understandings, or contracts with any other organization, association, group of employees, or union on matters concerning the conditions of employment in the bargaining unit.

(4) Management and the Union agree that, in regard to the bargaining unit, they will not do anything by custom or practice that will contravene or violate this Agreement. The parties recognize that changes may be made to this Agreement when required by law, Government-wide regulation, or other appropriate authority outside the Department, such as the Comptroller General.

2. Article 5 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 5

MID-TERM BARGAINING

Section 5.01 - Mid-Term Changes at the National Level. During the term of this Agreement, Management shall transmit to the Union its changes relating to personnel policies, practices, and general conditions of employment. The parties agree that it is in the interest of the Government, the public and the parties to negotiate in good faith in order to facilitate the negotiations process.

3. Section 7113 of the Statute provides as follows:

§ 7113. National consultation rights

(a)(1) If, in connection with any agency, no labor organization has been accorded exclusive recognition on an agency basis, a labor organization which is the exclusive representative of a substantial number of the employees of the agency, as determined in accordance with criteria prescribed by the Authority, shall be granted national consultation rights by the agency. National consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organizations's eligibility for, or continuation of, national consultation rights shall be subject to determination by the Authority.

(b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall--

(A) be informed of any substantive change in conditions of employment proposed by the agency, and

(B) be permitted reasonable time to present its views and recommendations regarding the changes.

(2) If any views or recommendations are presented under paragraph (1) of this subsection to an agency by any labor organization--

(A) the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and

(B) the agency shall provide the labor organization a written statement of the reasons for taking the final action.

(c) Nothing in this section shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining.

4. Section 7116(a) of the Statute provides, in relevant part, as follows:

§ 7116. Unfair Labor Practices.

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

. . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter.

5. Section 8(a)(1) and (5) of the National Labor Relations Act provides, in relevant part, as follows:

Sec. 8(a) It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [rights to self-organization, to form, join or assist labor organizations, to bargain collectively, and to engage in other concerted activities];

. . . .

(5) to refuse to bargain collectively with the representatives of his employers . . . .

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Dissenting Opinion of Member Wasserman

Contrary to the conclusion reached by my colleagues, I believe that the Union has established that the award is deficient as contrary to law. The Arbitrator failed to find that the Agency acted in derogation of AFGE's exclusive representational rights under section 7114(a)(1) of the Statute and, thereby violated section 7116(a)(1), (5) and (8) of the Statute. For this reason, I dissent.

This case, quite simply, involves the inalienable right of a labor union to act in a representational capacity in a bargaining unit for which it holds exclusive recognition. This right is not contingent on the Memorandum of Understanding that was negotiated by AFGE and the Agency or any other contractual arrangement to which they agreed. Instead, the right is grounded in the Statute. Section 7114(a)(1) expressly provides that "[a] labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." Section 7103(a)(12), in turn, defines collective bargaining as "the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet . . . and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees . . . ."

The principle of exclusivity is so fundamentally rooted in our nation's public and private sector labor-management relations' public policies that I am not surprised that there is no precedent that is precisely on point with this case. Employers know that they must deal only with the exclusive representative on terms and conditions of employment for bargaining unit employees. The Authority recently reaffirmed this principle when it stated that "both the agency and the exclusive representative have a unilateral right to demand that they negotiate with each other as one entity." U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1276 (1998) (FDA), motion for stay denied, (April 29, 1998). In the private sector, it is also well established that the National Labor Relations Act "makes it the duty of the employer to bargain collectively with the chosen representative of his employees. The obligation being exclusive, . . . it exacts 'the negative duty to treat with no other.'" Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-84 (1944) (quoting NLRB v. Jones & Laughlin, 301 U.S. 1, 44 (1937)).

In my view, the Arbitrator's award demonstrates a lack of understanding as to the dynamics of the collective bargaining process and the principles of exclusive recognition. Let me state, at the outset, that if the Agency had obtained AFGE's concurrence in including NFFE in the process that AFGE and the Agency had negotiated, I would find no unlawful conduct in this case. However, no such concurrence was obtained. Instead, the Agency simply extended the process to include NFFE, without AFGE's consent. As a predicate for determining that the Agency's conduct in allowing NFFE to participate in the task forces was not unlawful, the Arbitrator erected a wall -- or, as we say, drew a "bright line" between "consensus" and "bargaining." He then concluded that, in the absence of evidence to the contrary, the Agency did not refuse to bargain with AFGE over matters that were of concern to AFGE's bargaining unit. While bright lines often inform parties of their respective rights and obligations, the line in this case illuminates nothing more than the Arbitrator's failure to recognize that the use of consensus was part of the collective bargaining process. For example, to support his determination that the Agency did not refuse to bargain, the Arbitrator observed that, pursuant to the MOU, "the Parties, including representatives of AFGE and of NFFE, as well as management officials, have proceeded in their respective task force deliberations on the basis of attempting to achieve 'consensus' by discussing problems and issues until general agreement is reached." Award at 20. Discussing problems and issues for the purpose of reaching an agreement seems to me, as well as the Statute's drafters, to be part and parcel of collective bargaining. See section 7103(a)(12), defined above.

The Arbitrator also displays a lack of awareness as to the nature of an exclusive bargaining relationship and the statutory basis for exclusivity. The Arbitrator's determination that AFGE failed to establish a violation of its "recognitional or national level bargaining rights" misses the mark. Award at 19. Instead, the case concerns AFGE's pursuit of its statutory rights as the exclusive representative of the employees in its bargaining unit.

While the majority opinion purports to recognize the principle of exclusivity, it establishes a standard that is quite at odds with this principle. I point to their holding that "[w]here an agency's dealings with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute." Slip op. at 14. In my view, dealing with a labor organization other than the exclusive representative, unless the exclusive agrees, necessarily denigrates the exclusive representative and constitutes a per se violation of the Statute.

I am not at all persuaded that the cases involving unlawful dealings with employees present the same core issue that exists when an agency deals with a labor organization other than the one holding exclusive recognition.⁽¹⁾ Similarly, I do not believe that the principles underlying direct dealings with individual employees fully address the meaning of exclusivity. Unions have strong institutional interests that go to their very existence. These interests start with organizing efforts and proceed through the election and certification process contained in section 7111 of the Statute. The interests run the gamut from participation in meetings to receipt of information to actual face-to-face negotiations. See, e.g., United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 47 FLRA 170, 184 (1993) (the purpose of providing a union with the right to be represented at formal discussions under section 7114(a)(2)(A) is, among other things, "to give the union an opportunity to safeguard its institutional interests"); Social Security Administration, Office of Hearings and Appeals, 25 FLRA 571, 576 (1987) (the union's right to be present during a grievance proceeding, even if limited to an exchange of documents, is designed to protect the union's institutional interests as well as the interests of other bargaining unit employees). See also, American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (in finding that information was necessary within the meaning of section 7114, the court noted that the requesting union "had a legitimate concern with its own status as the exclusive bargaining representative"). Because dealings with a labor organization other than the exclusive representative undermine the union's institutional interests, I believe such conduct is even more egregious than dealing with individual employees.

I question too the use of Authority precedent on which the majority relies. First, I note that in the IRS case, 19 FLRA 353, the permissible dealings with employees involved only information-gathering through the use of questionnaires. This activity is a far cry from dealings in a negotiating context. Even the D.C. Circuit, in affirming the Authority's decision, recognized this distinction. "[A] key issue . . . is whether the allegedly unfair labor practices occurred during the course of negotiation, i.e., during bargaining." NTEU v. FLRA, 826 F.2d 114, 123 (D.C. Cir. 1987). Furthermore, the subject of polling employees is quite distinct from, and trivializes the significance of dealing with a labor organization that is not the exclusive representative. In the GPO case, 23 FLRA 35, the Authority found no unlawful conduct in dealing directly with an employee for purposes of resolving an informal EEO complaint because the union had no statutory right to represent the employee. This is in contrast to the instant case in which AFGE was clearly exercising its statutory collective bargaining right. By stating that "not all contacts between an agency and unit employees constitute direct dealings that violate the Statute[,]" slip op. at 13, I am concerned that there may be circumstances where communications with employees and, by extension, to labor organizations other than the exclusive representative, will now be deemed permissible dealings.

I am also concerned about the use of the phrase "direct dealings" when describing communications with a labor organization other than the exclusive representative. Not only is the definition of the phrase and its application confusing,⁽²⁾ but it dramatically and, I think unwisely, departs from the situations for which the principle was designed. Historically, the phrase "direct dealings" has addressed communications with employees that circumvented an exclusive representative. It has not described communications with labor organizations other than the exclusive representative on matters relating to the conditions of employment of employees in the exclusively recognized unit. The principle cannot be applied in the latter situation because such dealings are simply improper under the Statute and, therefore, a per se violation of the Statute.

Additionally, I believe that the Arbitrator drew an arbitrary distinction between consensus and bargaining, and what that means in terms of exclusivity, which the majority opinion appears to accept. While the Arbitrator and my colleagues find dispositive the fact that AFGE retained the right to resort to traditional collective bargaining in the event that consensus was not reached, the point here is that consensus was an integral part of the bargaining process that AFGE and the Agency agreed to use.

I believe that the facts of this case present a clear cut example of unlawful dealings.⁽³⁾ The Agency's task forces were developed to address Agency-wide matters pertaining to a reorganization of its field operations.⁽⁴⁾ The record shows that AFGE represents about 8,800 employees in a nationwide unit consisting of 71 of the Agency's 81 field offices. NFFE represents about 640 employees in 3 field offices. Clearly, NFFE does not have the same nationwide responsibilities as does AFGE.

From the commencement of the Agency's reorganization efforts, AFGE continually exercised its rights as the exclusive representative for its nationwide unit.⁽⁵⁾ AFGE pushed for "equality of participation" with the Agency on the reorganization teams. Transcript of Arbitration Hearing at 39. AFGE negotiated a memorandum of understanding with the Agency that defined AFGE's participation on the task forces. The MOU, portions of which are highlighted by the majority, is a comprehensive document ranging from an extensive description of AFGE's participation on the task forces to various services that would be provided to AFGE representatives, such as travel and per diem. The MOU was the product of bilateral negotiations and does not speak to third-party involvement. It was negotiated by AFGE and the Agency solely for use by AFGE and the Agency.

The MOU defined both traditional and non-traditional bargaining methods that would be used for deliberations on reorganization issues. Its central feature was obviously the use of a "consensus decision-making process, which essentially gave [AFGE] veto power over proposals." Id. In fact, it was the Agency head who suggested that consensus be used as a means of ensuring that AFGE had equal participation to the Agency representatives on the task forces. Although designed to be less adversarial than traditional collective bargaining, consensus decision-making is, as I stated earlier, simply one aspect of collective bargaining. Cf. U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 319 (1997) (collective bargaining can occur in a variety of ways, including the use of collaborative or partnership methods). Moreover, AFGE's Executive Board had a right to veto any agreements reached in consensus, further demonstrating that all discussions, no matter the forum, were in the context of AFGE's exclusive collective bargaining relationship.

NFFE, on the other hand, did not negotiate an agreement regarding its participation on the task forces. Instead, the Agency unilaterally invited NFFE to participate on essentially the same terms as AFGE. The record shows that the NFFE representatives on the task forces "were treated as equal partners[,]" and that the Agency made no attempt to limit the NFFE representative's comments or recommendations "to matters just concerning his office . . . ." Transcript at 217, 152. The record also contains a number of instances showing NFFE's active involvement in the consensus process. For example, a NFFE representative "signed off" on a proposed plan for the reorganization of the Field Direction and Operation Support Offices despite the fact that AFGE was still completing its review of the plan. Id. at 60. On another occasion, the NFFE representative interjected himself in discussions on a community planning and development plan to the point of having the other participants accede to "every concern he had[.]" Id. at 152. Furthermore, NFFE had the right to veto any agreement that AFGE and the Agency reached through consensus.

Had the Agency wanted to involve NFFE in the AFGE-negotiated bargaining process, or had the Agency wanted to negotiate an MOU with both AFGE and NFFE in the first place, it could have sought bargaining on a multi-union basis. This would have preserved each party's rights, as guaranteed by the Statute. I find our recent decision in FDA, 53 FLRA 1269, to be instructive on this point since, in some respects, it presents the flip side of this case. In FDA, an agency attempted to require a single union, which represented two offices in a consolidated unit, to negotiate a separate agreement for each office. We found that such conduct violated the duty to bargain in good faith under section 7116(a)(1) and (5) of the Statute. "The principle that the exclusive representative and agency are each a single party dictates that neither has a right to turn itself into two parties and demand separate negotiations." 53 FLRA at 1276. As we also stated there, and as I would find here, parties may mutually bargain over "variations" in the manner in which they deal with one another. However, the "basic bargaining relationship is between one union and one employer." Id. ⁽⁶⁾

The Arbitrator's findings and conclusions with regard to the statutory violations convince me that he was more concerned with the efficient operation of the task forces than the statutorily mandated bargaining obligations. Establishing separate AFGE and NFFE task forces may not have been the most efficient process. However, that is not the issue. Simply put, the issue is whether the Agency's conduct was in derogation of AFGE's rights as the exclusive representative and, therefore, contrary to the Statute. In my view, it was.⁽⁷⁾

One additional point deserves note. AFGE and the Agency negotiated the MOU in the spirit of collaboration. The processes developed therein were designed to tackle the significant issues raised by the reorganization in a way that would ease reinvention efforts and be effective and efficient. The MOU was consistent with the Administration's encouragement of the use of partnership arrangements. See, e.g., U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360 (1998), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 98-1377 (D.C. Cir. Aug. 17, 1998), in which we spoke to the purposes of Executive Order 12871, which include the furtherance of good labor relations and non-adversarial partnerships. For this reason, AFGE and the Agency should be commended for negotiating the MOU. Regrettably, however, the unintended effect of today's decision may actually discourage unions from entering into collaborative relationships by whatever name attaches to them. If those relationships are categorized as endeavors that are clearly distinct from traditional bargaining, rather than an aspect of the bargaining process, today's decision permits an agency to invite unilaterally any number of other unions into the process and deal with them on matters of common concern. If unions holding exclusive recognition realize that their hard-won efforts will extend to other parties who can second guess any agreements reached, the value of entering into collaborative relationships may well be diminished. I emphasize that I have no objection in this case to the Agency wanting to deal with NFFE on reorganization issues, in general, or specifically on the reorganization task forces. My point is that the Agency could not involve NFFE in AFGE's negotiated process, absent AFGE's agreement, without infringing on AFGE's rights as the exclusive representative.

An agency, even if well-intentioned, can overstep its bounds by ignoring the fundamental rights of an exclusive representative unless these rights are protected. Today's decision unfortunately may be read to suggest that agencies need not exercise caution in fulfilling their statutory responsibilities to the unions holding exclusive recognition.

In sum, I would find that the award is deficient as contrary to law because the Arbitrator failed to find that the Agency violated section 7116(a)(1), (5) and (8) of the Statute. Because I would set aside the award on this basis, there is no need to address the Union's remaining exceptions.

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FOOTNOTES:

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Authority's Footnotes Follow:

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. The text of section 7113 of the Statute is set forth in the Appendix to this decision.

3. The Regional Director refused to issue a complaint based on AFGE's charge. The Regional Director's decision was upheld by the General Counsel on appeal. Award at 9-10. See Letter of January 19, 1995, Attachment to Agency's Opposition.

4. Hereinafter, reference to "the task forces" will include both the program area task forces and the FRTF.

5. It appears that after the FRTF was established the MOU was also applied to it.

6. The relevant portions of section 7116(a) of the Statute and Articles 1 and 5 of the parties' collective bargaining agreement are set forth in the Appendix to this decision.

7. The Agency does not except to this finding.

8. AFGE does not except to the Arbitrator's conclusion that the Agency did not violate AFGE's rights under the parties' agreement.

9. Although AFGE's grievance clearly alleged violations of section 7116(a) of the Statute, the Arbitrator nowhere set forth or discussed the elements of such violations. Analysis of the AFGE's exceptions therefore necessitates, to the extent possible, setting forth and applying those elements to the Arbitrator's findings.

10. We apply these principles to each of the exceptions that challenge the award's consistency with law.

11. An agency is not required under the Statute to bargain with one exclusive representative about conditions of employment in a unit represented by another union because such a requirement would run afoul of the principle of exclusive recognition. See United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1442 (D.C. Cir. 1992) (Cherry Point) ("We are not aware of any case--in either the public or private sectors--in which an employer has been required to bargain with a union over the conditions of employment of employees in another bargaining unit . . . . There is a good reason why no such case appears to exist--for a court to so hold would violate the fundamental principle that a union is the exclusive representative of employees in the certified or recognized unit, and those employees only." (emphasis in original)). See also OPM, 51 FLRA at 505, 507-08 (discussion of application of Cherry Point to proposals that determine the conditions of employment of employees in units represented by another union).

12. By dealing directly with employees in a unit of exclusive recognition concerning their conditions of employment, an agency deprives the union of its rights as an exclusive representative in violation of section 7116(a)(1) and (5) of the Statute. See, e.g., U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339, 1346 (1996) (FCI, Bastrop).

13. We note that, in this case, the General Counsel did not issue a complaint regarding related Agency actions, see n.3, supra.

14. Our dissenting colleague expresses concern about the applicability to this case of the term "direct dealings" and precedent concerning it. Examining and applying this doctrine, however, is directly responsive to the allegation and exceptions before us. In this regard, AFGE asserts:

The conduct exhibited by [the Agency] in this case is indistinguishable from the conduct found by the FLRA to constitute an unlawful bypass. As held in [Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298 (1991) (SSA)] . . . , a bypass occurs when the agency disregards the Union's status as exclusive representative. . . . The only difference between [SSA] and the present case is that while, in [SSA], the agency dealt directly with unit employees, in this case [the Agency] has chosen to deal with NFFE on the conditions of employment in the Council unit. The principle that the Union's status as exclusive representative cannot be denigrated by the Agency is as equally applicable in the present case as it is in the more traditional bypass case.

Exceptions at 14-15. Thus, although we share our colleague's concern that the term "direct dealing" is potentially confusing and, as set forth above, we acknowledge that the precedent surrounding it developed in connection with contacts between agencies and employees, not agencies and unions, we are unclear how that concern affects resolution of the exceptions.

15. The relevant portions of section 8(a)(1) and (5) are set forth in the Appendix.

16. Of course, consensus could fail because AFGE, NFFE, or the Agency "vetoed" it. In addition, as set forth above, the AFGE Executive Board had the right to "disapprove . . . any 'consensus agreement' by any of the task forces . . . ." Award at 20.

17. The record in this case demonstrates that the task forces were unilaterally established by the Agency and were not the product of collective bargaining with AFGE. Award at 11.

18. The dissent suggests that the essence of the violation is that the Agency included NFFE in AFGE's "negotiated process." We note, in this regard, that AFGE did not allege that the Agency violated the MOU, nor did it allege that the Agency's decision to include NFFE on the task forces constituted a repudiation of the MOU.

19. Because we conclude that AFGE's rights as exclusive representative were not violated, we do not share our colleague's concern that the holding in this case suggests that agencies need not exercise caution in fulfilling their statutory responsibilities to unions holding exclusive recognition. Moreover, we do not believe that our decision discourages collaborative efforts. We hold only that, properly constructed to comply with the rights of exclusive representatives, such collaborative efforts may involve more than one union.

20. We note that the Authority's test for an independent violation of section 7116(a)(1), articulated in FCI, Bathrop and SSA, Region X (FCI, Bathrop test), differs from the approach used by the NLRB under the Act. The NLRB generally does not find an independent violation of section 8(a)(1) based on the fact of direct dealings alone. See, e.g., Central Management Co., 314 NLRB 763, 767 (1994); Borden, Inc., 308 NLRB 113, 126, 128-29 (1992); Il Progresso Italo Americano Publishing Co., Inc., 299 NLRB 270, 290 (1990) (promises of benefits or threats constitute independent violations of section 8(a)(1) because of their effect on employees' rights under section 7 of the Act, not because they are a part of the employer's direct dealings). As there has been no finding of direct dealings that are violative of the Statute in this case, there is no need to determine whether the test should be modified to require any additional findings.

21. We recognize that section 7113 states that "[n]ational consultation rights shall terminate" when a union no longer meets the requirements prescribed by the Authority. However, nothing in section 7113 precludes an agency, in its discretion, from engaging in discussions regarding conditions of employment with unions representing agency employees that do not possess such rights.

22. There is no evidence in the record indicating that NFFE was a rival union attempting to unseat AFGE.

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Footnotes from the Opinion of Member Wasserman Follow:

1. Of course, I agree with my colleagues that an employer cannot deal directly with unit employees and that unlawful dealings can occur in a variety of contexts. I also agree with their statement that an employer is not required to bargain with one exclusive representative about conditions of employment in a unit represented by another labor organization. To these well established principles I add that an employer cannot do this without the agreement of the exclusive representative that holds recognition.

2. It is not clear to me whether my colleagues would find that all "direct dealings" violate the Statute. On the one hand, they define the term in Part B.1.(a) as referring to conduct that undermines an exclusive representative. On the other hand, the examples provided in Part B.1.(c), as well as my colleagues' citation to the GPO case, suggest that not all direct dealings would be unlawful.

3. Like the majority, I too defer to an arbitrator's factual findings. Where those factual findings do not support a conclusion of law, however, the Authority is obliged to find the award deficient under section 7122 of the Statute. See, e.g., Department of Health and Human Services, Public Health Service, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 34 FLRA 823, 832 (1990) (arbitrator's legal conclusion not supported by factual findings). For example, the Arbitrator in this case found that dealing separately with AFGE and NFFE would have been duplicative and inefficient. This finding by the Arbitrator is irrelevant, in my view. More importantly, however, unlawful conduct, regardless of the motive, cannot be condoned. Accordingly, deference to the Arbitrator's finding on this matter does not support the correct conclusion of law. As to my colleagues' deference to the Arbitrator's findings with respect to the participation of NFFE on the task forces, I do not see where the Arbitrator made any explicit factual findings regarding specific instances of NFFE's conduct on those task forces. I question, then, how I can defer to his factual findings. Cf. U.S. Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 54 FLRA 338 (1998) (majority remanded where no factual findings with regard to an entitlement to environmental differential pay were made). Nonetheless, the record contains sufficient information concerning NFFE's participation to permit an examination of what transpired on the task forces. See, e.g., National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Authority looks first to an arbitrator's factual findings and then to the record to assess whether those findings can be derived from the record).

4. I agree with the majority that these task forces were unilaterally created by the Agency, as was the Agency's decision to reorganize its field operations. However, I do not understand the significance of these facts in terms of the Agency's obligation not to tread upon AFGE's exclusive recognition rights.

5. My colleagues make a point of noting an earlier "reinvention" process that preceded both the reorganization and the negotiation of the MOU. While not expressly stated, my colleagues seem to suggest that AFGE somehow waived any objection to the Agency's conduct in including NFFE. In reality, AFGE repeatedly invoked its rights as the exclusive representative in the nationwide bargaining unit and objected to the Agency's actions in allowing NFFE to participate on the same basis as AFGE. For example, AFGE was unaware of NFFE's participation on a public housing task force until an AFGE representative received a list of members of that task force. According to an AFGE representative who testified at the arbitration hearing, it was the receipt of that list that, in part, "triggered the parties' grievance that resulted in this arbitration." Transcript at 46-47. AFGE also protested NFFE's participation in the reinvention process by filing an unfair labor practice charge. Any reliance on the Regional Director's refusal to issue a complaint as support for a conclusion that no unlawful conduct occurred in this case would convey an erroneous impression. The reinvention and reorganization efforts were two distinct processes and, therefore, the Agency's conduct in including NFFE in the former process is not controlling with respect to the reorganization. In any event, we are not here reviewing, nor do we have the authority to review, the appropriateness of the General Counsel's action. Finally, the fact that the Agency maintained a policy of including both labor organizations on the reinvention and reorganization efforts cannot operate to diminish the exclusive rights of either labor organization.

6. I disagree with the manner in which the majority distinguishes the FDA case. On the one hand, the majority emphatically rejects any notion that consensus decision-making is distinct from bargaining. On the other hand, they find FDA distinguishable from this case because, here, AFGE was not required to surrender its right to bargain. Similarly, the union in FDA was not required to surrender its bargaining right. Rather, the agency in FDA, as the Agency here, wanted to control the forum in which the bargaining would take place. Furthermore, since AFGE's ability to engage in consensus decision-making with the Agency was compromised by NFFE's participation on the task forces, and since consensus is part of the bargaining process, I believe the FDA case supports the finding of a statutory violation in this case.

7. My view of this case as involving an infringement of AFGE's exclusive representational rights under the Statute is independent of any rights under the MOU that may have been violated. I agree with my colleagues that no such violation was raised and, therefore, is not appropriately addressed.

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